Foo Fio Na Revisited: Why a Signed Consent Form Is Not the End of the Story

Nearly twenty years on, Foo Fio Na v Dr Soo Fook Mun & Anor remains the foundation of Malaysian law on informed consent. On 29 December 2006 the Federal Court held that whether a doctor gave a patient an adequate warning about the risks of treatment is for the court to decide, and is not settled by what other doctors customarily say. Courts are still applying it.

A road accident, two operations and a wire loop

On 11 July 1982 the appellant was injured in a motor accident and admitted to Assunta Hospital with a dislocation of the cervical spine (the neck) at the C4–C5 level. The first respondent, an orthopaedic surgeon, began with a collar and traction. A closed manipulation under anaesthesia on 14 July 1982 did not succeed.

On 19 July 1982 the surgeon performed an open reduction, an operation to realign the displaced bones, and inserted a wire loop to hold them in position. The following day the patient was paralysed. A myelogram, an imaging study of the spinal canal, on 5 August 1982 showed the wire loop compressing the spinal cord. A second operation removed the loop, but the paralysis persisted and she remained dependent on a wheelchair.

She sued the surgeon and the hospital, alleging that the surgery had been negligently performed, that remedial action had been delayed, and that she had not been warned of the risk of paralysis. The High Court found in her favour and held the hospital vicariously liable, that is, legally answerable for the surgeon’s negligence. The Court of Appeal reversed that decision, applying the Bolam test.

The question the Federal Court agreed to hear

The test takes its name from Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. In broad terms, a doctor is not negligent if they acted in line with a practice accepted as proper by a responsible body of medical opinion, even though other doctors might have acted differently.

Leave to appeal was granted on the question whether the Bolam test should apply to all aspects of medical negligence. The appeal came before Mohamed Dzaiddin, Ahmad Fairuz and Siti Norma Yaakob, and the judgment of the court was delivered by Siti Norma Yaakob FCJ.

Risk disclosure is for the court to judge

The Federal Court allowed the appeal and restored the High Court’s orders, including its orders on damages, with costs.

The court held that the Bolam test does not govern a doctor’s duty to disclose the material risks of a proposed treatment. It adopted instead the approach of the High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479: a doctor must warn a patient who is capable of understanding of the material risks inherent in the proposed treatment, and it is for the court, not the profession alone, to decide whether that standard has been met.

The reasoning rests on a distinction between skill and choice. How to carry out an operation is a technical matter. Whether to undergo it at all is the patient’s decision, and it cannot be made without knowing what might go wrong. Because disclosure of risk engages the patient’s right to decide what is done to their own body, the profession’s practice cannot be conclusive.

How the ruling has been read since

The wording of the judgment left real doubt about whether Bolam had been displaced only for the duty to advise, or for diagnosis and treatment too. Court of Appeal and High Court decisions went both ways for roughly a decade.

The Federal Court resolved the doubt in 2017. In Zulhasnimar [2017] 5 MLJ 438 it confined Foo Fio Na to the duty to advise of risks and kept Bolam, as qualified by Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, for diagnosis and treatment. Later that year, in Dr Hari Krishnan [2018] 3 MLJ 281, it applied the same two-track approach and found that a surgeon and an anaesthetist had both failed to warn their patient, whose consent form contained only general wording.

In Adam bin Hamil v Dr Chiam Tee Kiang [2024] MLJU 3311 the High Court relied on Foo Fio Na in holding that a doctor who did not disclose the limits of their credentialing had undermined the patient’s informed choice. In Dr Chandran a/l Gnanappah v Gan See Joe [2025] 5 MLJ 216 the Court of Appeal dismissed a surgeon’s appeal; published commentary describes it as a case about whether a family’s consent to surgery was properly informed.

Malaysia reached this position early. The UK Supreme Court adopted a patient-centred standard for risk disclosure only nine years later, in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Practical takeaways for patients, doctors and hospitals

• Patients: a signed consent form is evidence, but not the end of the inquiry. The legal question is whether the material risks were actually explained to you.

• Patients: tell your doctor what matters to you. Disclosure is judged by what a reasonable patient, or this particular patient, would want to know.

• Doctors: what colleagues customarily tell their patients is no longer the yardstick. Record the specific risks you discussed; general wording on a form did not help the defendants in Dr Hari Krishnan.

• Doctors: diagnosis and treatment are still judged by Bolam and Bolitho, as Zulhasnimar confirmed.

• Hospitals: the High Court had held the hospital vicariously liable, and its orders were restored. Consent forms and the process around them deserve regular review, because generic wording offers limited protection.

Authorities and sources

• Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (Federal Court, 29 December 2006)

• Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 (Federal Court)

• Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 (Federal Court)

• Adam bin Hamil v Dr Chiam Tee Kiang [2024] MLJU 3311 (High Court)

• Dr Chandran a/l Gnanappah v Gan See Joe & Anor and another appeal [2025] 5 MLJ 216 (Court of Appeal)

• Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

• Rogers v Whitaker (1992) 175 CLR 479 (High Court of Australia)

• Montgomery v Lanarkshire Health Board [2015] UKSC 11 (UK Supreme Court)

• Malaysian Bar website, case note and judgment text for Foo Fio Na; Singapore Journal of Legal Studies [2009] SJLS 182; published law-firm case notes (secondary material)

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors